Consideration
37The parties are in fundamental disagreement about the meaning and intent of the wording agreed upon in March 2011, namely that:
negotiations will commence for a new disciplinary Regulation to replace the current preliminary and formal inquiry process with a streamlined process which otherwise maintains all existing members' rights and protections, as set out within the Regulation, FRNSW Standing Orders and the Awards.
38For its part, the applicant steadfastly insisted that its intention was unequivocally reflected in the words agreed upon. That is, there would be negotiations for a new regulation, but that in doing so all of the Union's existing members' rights and obligations under the Regulation, FRNSW Standing Orders and the Awards would be maintained. In other words, the provisions of the Regulation etc, which set out the rights and obligations of firefighters in connection with allegations of misconduct would be retained in any new regulation including, specifically, the formal inquiry process, elements of which were:
(a) the right to be furnished with a copy of the complaint or allegations (current Regulation 36(3));
(b) the right to be furnished with a copy of the charge, setting out the grounds of the alleged misconduct (current Regulation 43(2));
(c) the right to be furnished with a copy of the relevant portions of the Department's file and Preliminary Inquiry Report (current Regulation 43(3));
(d) the right to an inquiry and to be represented at an Inquiry (current Regulation 44(2));
(e) the right to have a plea recorded in response to a charge, and by extension the opportunity to formally show contrition that may then be relied upon in mitigation of penalty;
(f) the right to call evidence, and test any evidence being considered (current Regulation 44(6)).
39On the other hand, FRNSW interpreted the agreed words as guaranteeing that certain fundamental rights and obligations reflected in various provisions of the Regulation would be maintained, such as procedural fairness including the right to be informed of any allegation of misconduct, the right to respond to allegations and the right to defend a charge of misconduct. However, the intention was not to simply transfer the existing provisions of the Regulation into a new regulation, make some cosmetic changes so that it appeared there was only one process and not the current two (a preliminary inquiry followed by a formal inquiry) and leave it at that. Importantly, given its experience with the Merrylands Inquiry, which lasted a costly and time-consuming 19 months, FRNSW was seeking to eliminate the formal inquiry process in the Regulation and replace it, in the form of a new regulation, with a model based on the disciplinary process that applies generally to the NSW public service. By this means the respondent was seeking to streamline the process for dealing with alleged misconduct by firefighters.
40By agreeing to negotiate a new regulation to replace the existing Regulation, it may be presumed both parties considered there was a need to do so. If the FBEU had believed the existing Regulation was working satisfactorily, one would have thought it would have resisted any proposal for change. Ms Milkins said in her affidavit that savings of $472,000 per annum were anticipated from the FBEU's commitment to negotiate a new regulation. That saving was to assist in funding the wage increases for firefighters negotiated in 2011. Thus, part of the wage bargaining outcome was a commitment to negotiate a new regulation.
41As I earlier indicated, the impetus for a new regulation seems to have been provided by the Merrylands Inquiry, strengthened by subsequent recommendations of Ms McLeay, who was critical of aspects of the Regulation including the following:
The practice of allowing firefighters to elect not to be interviewed at any stage prior to a formal inquiry contributed to the time taken to manage the matters, and the level of formality and cost with which it was then required to be handled....
The rigidity of the Regulation has caused excessive time and financial costs. The strict adherence to the Regulation without alternatives obstructed the early and effective resolution of the matters.
The policies and procedures relating to keeping and accessing files caused disagreements between the parties, and delays. It is apparent that these policies and procedures need to be refined.
42The position, therefore, is that flaws were identified in the Regulation and the process under it, the parties agreed to streamline the disciplinary process by negotiating a new regulation and there was - to borrow a term from the law of contract - valuable consideration given for the commitment to negotiate a new regulation.
43I agree with the applicant that it is vital that parties that make agreements or provide undertakings, regardless of whether they are incorporated into formal instruments, comply with the agreement or undertaking. Integrity plays such an important role in industrial relations. In the present case, however, I consider there was a genuine difference of opinion as to the meaning of the words in the March 2011 agreement and the intention behind them. It becomes a matter of which opinion is to be preferred. In determining that question, I think the foremost consideration is that any outcome of negotiations between the parties must constitute matters of substance and not mere tokenism.
44The FBEU's response to the respondent's outline of what it proposed regarding a new regulation was attached to a letter sent to the respondent dated 15 December 2011. The attachment was a marked up version of Division 4 of Part 4 of the Regulation (cll 42 - 45). The marked up version:
(a) deleted cl 42 dealing with "Preliminary Inquiries into conduct of firefighter" in its entirety. Clause 42 is in the following terms:
42 Preliminary inquiry into conduct of firefighter
(1) The nominated officer may conduct, or may direct another officer to conduct, a preliminary inquiry into a complaint of misconduct against a firefighter.
(2) A preliminary inquiry may not be conducted by the officer in charge of the firefighter against whom a complaint of misconduct has been made.
(3) A preliminary inquiry is to be conducted in accordance with the Commissioner's Orders or, with respect to any matter for which those Orders do not provide, in such manner as the nominated officer may direct or, subject to any such direction, as the officer conducting the inquiry thinks fit.
(4) A formal hearing is not to be held and witnesses are not to be called for examination.
(5) The firefighter to whom the complaint relates may make written representations or, if the officer conducting the inquiry so permits, oral representations on any matter relevant to the inquiry.
(6) A firefighter who is permitted to make oral representations is entitled to be accompanied by an observer, chosen by the firefighter, while the representations are made.
(7) An officer conducting a preliminary inquiry at the direction of the nominated officer must report the result of the inquiry to the nominated officer in writing within the time set by the nominated officer.
(b) proposed the following additions (in italics) and deletions (strike through) to cl 43:
43 Charges against firefighter
(1) If the nominated officer considers (as a result of a preliminary inquiry current investigation or otherwise) that action should be taken against a firefighter in respect of a complaint of misconduct, the nominated officer may charge the firefighter with the alleged misconduct.
(2) Any such charge is to be:
(a) prepared in writing setting out the grounds of the alleged misconduct together with the nominated officer's recommendation on penalty should the charge be admitted by the firefighter and
(b) a copy is to be served on the firefighter against whom the charge is made.
(3) The firefighter, or a duly authorised representative of the firefighter, is to be allowed to read, and to take copies or extracts of, the relevant portions of the departmental file or preliminary inquiry report and any other papers held by NSW Fire Brigades in relation to the charge.
(4) The firefighter must, within 10 calendar days after being served with a copy of the charge, report to the nominated officer in writing whether the firefighter admits or denies the charge.
(5) If the charge is admitted by the firefighter, submissions may be made to the nominated officer by or on behalf of the firefighter (either orally or in writing) in mitigation of penalty.
(6) The nominated officer must send any such submissions together with the nominated officer's recommendation on penalty to the Commissioner.
(c) proposed the following additions (in italics) to cl 44(8):
44 Formal inquiry
(1) If the firefighter denies the charge or does not admit or deny the charge within 10 calendar days after being served with a copy of it, the nominated officer is to conduct, or direct another officer to conduct, a formal inquiry under this clause.
(2) The defendant may appear at the inquiry in person or be represented by a barrister, solicitor or agent.
(3) The inquiry may be conducted in the absence of the defendant if the defendant fails to attend the inquiry and if the officer conducting the inquiry is satisfied that the defendant has been served with reasonable notice of the time and place for the inquiry.
(4) Service of any such notice may be proved by the oath of the person who served the notice or by affidavit.
(5) The officer conducting the inquiry:
(a) is to conduct the inquiry in accordance with the Commissioner's Orders or, with respect to any matter for which those Orders do not provide, in such manner as the nominated officer may direct or, subject to any such direction, as the officer conducting the inquiry thinks fit, and
(b) is not bound by any law, rules or practice of evidence, and
(c) may be informed of any matter in such manner as he or she thinks fit, and
(d) must cause a transcript to be prepared of the proceedings of the inquiry.
(6) The officer conducting the inquiry:
(a) may require any firefighter or member of staff of NSW Fire Brigades to appear before the officer and to give evidence, and
(b) may require any firefighter or member of staff of NSW Fire Brigades to produce to the officer any document or thing relevant to the inquiry.
(7) A person who fails to comply with a requirement under subclause (6) without reasonable excuse is guilty of an offence.
Maximum penalty: 5 penalty units.
(8) The defendant, or a duly authorised representative of the defendant, is entitled to inspect any document or thing furnished under this clause, and is to be afforded every opportunity to give evidence to the inquiry and respond to and test evidence produced by any other person.
(d) proposed the following additions (in italics) and deletions (strike through) to cl 45:
45 Formal inquiry report
(1) An officer conducting an inquiry at the direction of the nominated officer must cause a report of the officer's findings and recommendations, together with the transcript of the proceedings and any document or thing admitted in evidence, to be sent to the nominated officer.
(2) If the defendant is found not guilty of misconduct, the nominated officer must terminate any suspension of the defendant immediately. The nominated officer may make further recommendations concerning the findings of the inquiry and must inform the defendant of all recommendations made.
(3) If the defendant is found guilty of misconduct, The the nominated officer must cause the report of the findings of a formal inquiry, together with any associated recommendations, transcripts or evidence, to be sent to the Commissioner.
(4) Written submissions (including submissions in mitigation of penalty) may be made to the Commissioner, by or on behalf of the defendant, within 10 calendar days or such additional time as the Commissioner allows.
(5) If the defendant is found not guilty of misconduct, the nominated officer must terminate any suspension of the defendant immediately.
45It may be seen that the main changes proposed by the FBEU were the deletion of any reference to a preliminary inquiry (leaving only a formal inquiry process) and a strengthening of a firefighter's right "to be afforded every opportunity to give evidence to the inquiry and respond to and test evidence produced by any other person."
46I do not understand how the FBEU's proposal could be regarded as streamlining the disciplinary process and how it would make any new process "simpler and quicker". Regardless of whether the nature of the misconduct warranted only counselling or a warning, the FBEU's proposal would require a charge to be laid if the firefighter contested the allegation and would require the respondent to launch immediately into a formal inquiry with all of its inherent delay and complexity. There would be no opportunity to resolve an allegation in an informal manner, promptly, confidentially and as close as possible to the source of the complaint or allegation.
47The FBEU proposed that an interim award be made until the parties had negotiated a new regulation. The proposed interim award was essentially designed to maintain the status quo, albeit it with a number of embellishments favouring the FBEU's position. The proposed interim award added nothing to the debate about a more streamlined disciplinary process.
48FRNSW first provided the FBEU with an outline of its position on 11 August 2011. A considerable time later the respondent provided a draft Fire (Disciplinary Process) Regulation 2012 on 25 October 2012. The Explanatory Note stated that the new provisions:
(a) replace the current preliminary investigation and formal inquiry process with a one-step investigation process, and
(b) allow remedial action to be taken at any point during the process, and
(c) enable the issuing of procedural guidelines by the Commissioner for the purposes of dealing with allegations of misconduct against firefighters as a disciplinary matter and the taking of disciplinary action with respect to firefighters under that Part [Part 4], and
(d) give the Commissioner power to deal with allegations of misconduct, unsatisfactory performance and take remedial action or disciplinary action, and
(e) set out the circumstances in which firefighters may be suspended from duty.
49FRNSW also provided a copy of draft "Procedural Guidelines for the Management of Conduct and Performance". These were the procedural guidelines referred to in the Draft Regulation at cl 36, which states:
36 Issuing of procedural guidelines
(1) The Commissioner may, from time to time, issue guidelines for the purposes of:
(a) dealing with allegations of misconduct against firefighters as a disciplinary matter, and
(b) the taking of disciplinary action with respect to firefighters under this Part, including disciplinary action in relation to unsatisfactory performance, and
(c) any other matter referred to in this Part.
(2) The procedural guidelines must be consistent with the rules of procedural fairness.
(3) Without limiting subclause (2), the procedural guidelines are to ensure that:
(a) a firefighter to whom an allegation of misconduct relates:
(i) is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the firefighter, and
(ii) is given an opportunity to respond to the allegation, and
(b) a firefighter against whom the Commissioner is proposing to take disciplinary action under Division 3 is given a reasonable opportunity to make a submission in relation to that proposed action.
(4) The Commissioner may from time to time amend, revoke or replace the procedural guidelines.
(5) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Commissioner thinks appropriate.
(6) A formal hearing involving the legal representation of parties and the clling and cross-examination of witness is not to be held in relation to an allegation of misconduct and the taking of disciplinary action with respect to a firefighter.
(7) However, subclause (6) does not prevent the Commissioner from:
(a) conducting such investigations into an allegation of misconduct as the Commissioner considers necessary, or
(b) conducting interviews with the firefighter to whom the allegation relates or with any other person in connection with the matter concerned, or
(c) taking signed statements from the firefighter or any such person.
50The Guidelines were very comprehensive and based essentially on those applying to the general public service. If adopted they would, in my opinion, assist in avoiding many of the mistakes and delays that occurred in the preliminary inquiry stage of the Merrylands Inquiry. My only concern about the status of the Guidelines is that despite heavy reliance on them in the Draft Regulation, the Commissioner may amend, revoke or replace them without any reference to or consultation with the FBEU. I do not think that is an acceptable arrangement and as I propose later in this decision any change to a new regulation should only be made after a proper process of consultation has occurred and the FBEU maintains a right to bring the matter to the Commission before any amendment is promulgated.
51Subject to what I have just stated, my view is that provided the basic rights and protections afforded to firefighters are not compromised when they are required to deal with allegations of misconduct it is not necessary for a formal inquiry process to be retained in any new regulation. The only "right" or "protection" of any substance that would not be retained under the FRNSW's proposed regulation and accompanying guidelines is that the firefighter accused of misconduct will not have the opportunity to test, by way of cross-examination, adverse oral or documentary material provided to the person charged with the responsibility of determining whether the allegations regarding misconduct have been made out and upon which that person may rely. That may seem a significant omission, but it needs to be considered in light of the following:
(a) under FRNSW's proposals:
(i) allegations must be put to the employee subject to the investigation and the employee must be provided with an opportunity to respond to the allegations. The employee is to be advised, in writing, of the specific details of any allegations as soon as practicable, having regard to the nature and circumstances of the matter. This requires sufficient detail to enable an accurate response. The letter should also give such relevant information that will fairly enable the employee to respond - this might include the date, time, location and details of the alleged incident. The employee should also be advised that the allegation, if proven, may result in disciplinary action;
(ii) in any interview with the employer regarding allegations of misconduct the employee is entitled bring any written submissions to any interview that takes place and is to be given 7 days (or longer in complex matters) from the interview to provide any further written submissions. Extensions of time may be available;
(iii) the employee is to be advised that a support person may be present in any interview. The support person may act as a witness or adviser and may speak on the accused employee's behalf;
(iv) if the person charged with making a decision regarding whether misconduct has been made out has determined that on the balance of the probabilities an employee has engaged in misconduct and that disciplinary action may be appropriate, he or she must be notified in writing of that opinion. The written notification must include:
the details of the misconduct that the decision maker is of the opinion the employee has engaged in;
the full investigation report with all supporting attachments, subject to any legislative or confidentiality requirements precluding disclosure. (If the matter concerns a Protected Disclosure or confidentiality the identity of the person who made the disclosure is only to be revealed in the investigation report if it is essential having regard to the principles of procedural fairness - that is, essential for the employee to be able to respond to the allegation);
an outline of the disciplinary action that the decision maker is considering imposing or recommending, including the severest disciplinary action that is being considered for the particular matter. In particular the employee must be advised if dismissal, or a direction to resign is being considered;
any previous employment matters (such as past remedial actions, monitoring programs, or discipline matters or alternatively previous satisfactory work history) to be taken into account;
the advice that the employee has 14 days from the receipt of the written notice to make a submission and to provide any additional information which he or she considers should be taken into account in relation to the disciplinary action being considered before a final decision is made. The employee's submission may address such matters including the finding of the decision maker that he or she has engaged in misconduct, the findings of the investigation report or any extenuating and mitigating circumstances. The decision maker shall also consider any submission made on behalf of the employee by the union.
the decision maker has the discretion to extend the period for response, having regard to the overall circumstances and the need to ensure procedural fairness, if the employee applies for additional time and provides reasonable grounds for seeking the extension.
the advice that the employee will be given an opportunity to have an interview with the final decision maker, accompanied by a union or other representative (not taking a legal advocacy role) before a final decision is made. The support person may speak on behalf of the employee but may not cross-examine the decision maker. A request for an interview should be made within 7 days of receipt of the written response.
the interview is not an opportunity to further examine evidentiary material or to provide extensive submissions on the evidence. The purpose of the interview is for the decision maker to determine the appropriateness of a particular disciplinary action.
the advice that these further submissions and/or additional information will be considered before a final decision is made to implement the disciplinary action being considered.
(v) each step in the disciplinary process must be taken and documented before the decision maker may make a final decision. It is essential that the decision maker's consideration of the most severe disciplinary action, must not involve any pre-judgment as to what disciplinary action, if any, is ultimately applied to the employee;
(vi) in making a decision as to disciplinary action, the decision maker must consider all the material before them, including the content of any interview or further submissions from the employee;
(vii) if the disciplinary action may involve removal of the employee from employment, a recommendation will be forwarded to a senior employee who is the delegated decision maker for disciplinary action that involves termination of employment. Any requested interview will be held with the final decision maker;
(viii) the employee will be advised in writing of the final decision as to disciplinary action and if applicable, the date from which the decision becomes effective;
(ix) all stages including the determination stage must be made in a timely and expeditious fashion.
(b) the FBEU may, at any point during the disciplinary process, notify the existence of an industrial dispute to the Industrial Relations Commission. The Commission may intervene using its conciliation and, if necessary, arbitration powers. For example, if an employee is advised that as a consequence of the employer's findings he or she is to be dismissed, the Commission may make an interim order under s 136(1)(d) of the Act that the employee shall not be dismissed until the Commission has had the opportunity to hear the matter and make final orders about the fairness or otherwise of the decision to dismiss. An individual employee may apply for an order under Ch 2, Pt 6 of the Act that the employer not dismiss the employee as a consequence of disciplinary proceedings. The access to a tribunal such as the Commission and the availability of appropriate remedies would seem to me to render a formal inquiry process conducted by the employer as unnecessary or superfluous;
(c) in a Recommendation I made in 2002 (5 September 2002) in Matters IRC 4534 and 4545 of 2002, which involved the present parties, I disagreed with the proposition that firefighters are no different to other workers when it comes to their rights in relation to termination of employment. I said that firefighters hold a special position in the community and they are regarded with a high degree of trust and respect by the community. I did go on to say, however, that if firefighters betray that trust and respect it may be necessary for them to be removed swiftly subject to procedural fairness and provision for review. The same is true of other emergency services personnel such as police and ambulance officers. A disciplinary process that requires a preliminary inquiry followed by a formal inquiry (followed possibly by a review by a tribunal), with its attendant delay and duplication is inconsistent with the notion of swift removal;
(d) I am not aware of any other disciplinary process applying to emergency services personnel that provides for a formal inquiry process whereby an employee accused of misconduct has a right to cross-examine his accuser prior to any decision being made by the employer regarding what disciplinary action should be taken. The disciplinary process applying to paramedics employed in the Ambulance Service, for example, is very similar to that proposed by FRNSW. In respect of police, the Police Act 1990 provides in s 181D(1) that:
The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.
However, s 181D(3) provides:
(3) Before making an order under this section, the Commissioner:
(a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and
(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and
(c) must take into consideration any written submissions received from the police officer during that period.
There is no provision in the Police Act for an officer to cross-examine his or her accuser as part of the removal process. Instead the Police Act entitles the removed officer to apply to the Industrial Relations Commission for a review of the order on the ground that the removal is harsh, unreasonable or unjust (see ss 181E, F and G). It is only then that the officer may test the evidence against him or her by cross-examination.
52The absence of a formal inquiry process does not in any way prejudice a firefighter charged with misconduct. The FBEU submitted that, in the Merrylands Inquiry, if there had not been a formal inquiry process the preliminary inquiry would have resulted in the officers being dismissed. As it was, the formal inquiry cleared the officers of any misconduct. As I understand it, at least one of the accused officers refused to participate in the preliminary inquiry making it something of a 'lame duck'. Be that as it may, however, access to the Industrial Relations Commission, and the remedies available under the Act to public sector employees who are subject to a disciplinary process, is more than sufficient protection for those employees. A formal inquiry process conducted by the employer is otiose.